The Curious Case of India’s Draft Environment Impact Assessment Notification, 2020

For the past few months, there’s been an immense hue and cry over the draft EIA Notification, 2020. It is claimed by many activists, environmental groups, biologists and students that the notification is “anti-people”, “anti-environment” and “pro-industries”. In this article, I will discuss the Environment Impact Assessment (EIA) and the repercussions and consequences of the present draft EIA notification. EIA is a formal legal process which examines, evaluates and predicts the environmental denouement on any developmental program or project.

Origin of EIA and its relevance in India

The concept of EIA has its roots from the United States, which espoused neoliberal policies around the period of 1970s, where they passed environmental laws by bringing in two important systems for environmental decisions – Scientific Assessment and Public Participation. Due to huge public pressure, the EIA process was founded by the enactment of the National Environmental Policy Act, 1970[1]. Most of the nations in the world have implemented the Environment Impact Assessment. On one side, it acts as a key to control the activities of private entities. On the other hand, it is a pre-requisite for grants or loans by International Financial Institutions[2].

Since the inception of EIA in 1994 in India, it has been a thorn in the cloth of both Industry and Activists. EIA is statutorily backed up by the Environmental Protection Act, 1986 which was enacted after the Bhopal gas leak disaster in 1984. Before 1994, it was an administrative requirement for mega projects to obtain environmental clearance from Central ministry. A new EIA legislation was notified by the Ministry of Environment, Forests and Climate Change (MoEFCC) in 2006. This was further redrafted by MoEFCC in 2020[3] to make it more transparent and expedient[4].EIA was fundamentally brought into effect for the public good. But in reality, it has a contrasting effect.

Basic Features and Components of the EIA process

It is quite essential to understand the fundamental mechanism of EIA. The EIA cycle consists of four important phases.

Screening: It is the first and simple process which decides whether an EIA is required or not. But the issue with this process is that in India, projects are exempted from the process of EIA based on the economic investment undertaken by the project in order to refrain the small projects from undergoing this complex process. But environmental hazards are caused by projects of any value[5].

Scoping: It helps in comprehending the scope of environmental impact and issue by discussing with the local people, scientific institution, developers, investors etc,. It also addresses the issues and concerns of different groups.

Public Consultation: Being one of the most important components of the EIA process, it takes place through,

  • Public hearing, where the concerns of the local people over the project are taken into consideration.
  • Public participation, where the responses of other concerned people over the project are obtained by way of writing.

Appraisal: The development project is deeply scrutinized based on all the data and information produced by the authorities.

Important provisions in the new draft EIA, 2020

  • The draft EIA notification 2020 runs for 83 pages and consists of 60 different definitions of relevant terms. The notification defines three categories of projects namely A, B1 and B2 founded on the social and economical impact and geographical extent of these impacts.
  • The notification envisages two kinds of approval,
    • Prior environment clearance with the approval of expert committees and
    • Environmental permission without the approval of expert committees
  • A new body called as “Technical expert committee” will be constituted with a maximum of 10 members and carries out the function of categorizing or decategorizing the projects as A1, B1 and B2 on scientific principles[6].
  • Almost 40 different projects such as clay or sand or extractions digging well or foundations of buildings, solar thermal power plants, common effluent treatment plants etc., are exempted from prior Environmental Clearance or Environmental Provision[7].
  • The validity of environment clearance for mining projects will be extended to 50 from 30 years, river valley project to 15 from 10 years and all other projects to from 10 to 7 years[8].
  • Several projects such as all B2 projects, irrigation, production of halogens, chemical fertilizers, Acids manufacturing, Biomedical waste treatment facilities, building construction and area development, Elevated roads and flyovers, Highways or expressways are exempted from public consultation[9].
  • If the location of any project is changed after the grant of prior EC or public hearing, that project would be appraised as de nova (New)
  • It is mandatory for the project proponent to submit compliance report once every year to the relevant authorities[10]. Failure on which a daily fine will be issued based on the project category[11].
  • The notification also contains provisions for violation[12] and non-compliance cases[13] which shall be taken on a suo moto application or on a report by Government Authority or found during the application process or on an appraisal by appraisal committee.

Analysis – What’s the Debate About?

Principally, the notification is issued in order to impose limitations and proscription on certain projects or expansion or modernization of any existing projects.  The present notification is issued under sub-section 1 (Central Government shall make expedient measures in order to protect and improve the environment and to prevent and control environmental pollution) and sub-section 2(5) (Central Government shall take measures with respect to restriction of areas under which industries, operation or processes shall not be carried out or should be carried out with due protection) of Section 3, Environmental Protection Act, 1986.

One of the most important objectives of the Environmental Protection Act is to protect and improve the environment. But the provisions of new EIA draft are against the objective of its parent act and itself. Formation of a new technical expert committee for categorization of projects based on the scientific concept is an appreciative move. On the other side, some provisions are against the interest of people and the environment.

Ex post facto clearance of projects: In March 2017, the Environmental Ministry passed a notification stating that any project functioning without environmental clearance can apply for EC’s. Now, this scheme is turned into a permanent move through the draft EIA, 2020[14].  Primarily, all the industrial units and projects operating illegally without Environmental Clearance have an opportunity to turn into legal units under this provision by submitting a remedial plan and by paying the prescribed penalty. But the object behind such a provision till remains vague.  But, whether a remedial plan and compensation can undo the damage done to the environment?

Even if the Environmental Clearance for such a project is rejected ultimately, the damage done to the environment would be irreparable. Any project which may have grabbed land illegally or by coercion or by fraud and operate without environmental safeguards too have an option to benefit from the scheme.  The Supreme Court, in a case related to the industrial units functioning in Gujarat without prior Environmental Clearance, passed an order stating that post facto clearances are against the jurisprudence of Environmental law and it is detrimental to the Environment[15]. Three industrial units were manufacturing pharmaceuticals and bulk drugs for several years without EC and caused air pollution in its area.

In April 2020, during the lockdown, a coal mining project was approved in the Dehing Patkai Elephant Reserve Forest ( Known as Amazon of the East) through video conference[16]. On the other hand,  a penalty of Rs. 43.25 crores were levied by the Assam Forest Department for ravaging the Dehing Patkai Elephant Reserve Forest ( Known as Amazon of the East) by illegal mining for a period of sixteen years from 2003[17]. This situation is quite problematic as the mining project gets benefited in spite of its illegal violations (illegal mining).

Post facto clearance was provided in India even before the issuance of these notifications.  Based on the report submitted by Chennai Solidarity Group, it was found that between the period of 2001- 2013, IIT-Madras has constructed buildings over 52 acres and it was engraved out of the quondam deer park. But the institution has not obtained any statutory clearances for cutting of trees and diverting the use of forests. Nor it had obtained prior environmental clearance.  Later the regulatory authorities granted EC to the illegal buildings after accepting an apology and an undertaking from the institution that it would not repeat such offences.  Even Koodankulam Nuclear Power Plant Corporation received post facto environment clearance in 2013[18]. But the legal validity of this clearance still remains in question considering the fact that post-fact clearances are considered ultra vires by the National Green Tribunal.

Exclusion of projects from prior Environment Clearance or prior Environment Permission:  As already stated, forty projects were exempted from getting prior EC OR EP. Sand deposits removal from agricultural field and community works are done away with prior EP or EC. According to the new draft construction of buildings below 150000 square meters (size of a small airport or stadium) do not require environmental clearance.  The Centre for Science and Environment states that the construction boom in India will make the cities unfit to live due to large amount carbon emission, waste generation and water effluents which pollutes the environment. Exempting such projects from the environment will have a deleterious effect on the environment.

Debilitating and exempting activities from public consultation:  Public participation is the cornerstone of the EIA process. But as stated above, several projects were exempted from public consultations. Among other projects, highways and building construction are also excluded. The report of the Centre for Science and Environment states that Building construction sector causes pollution in cities and one of the major reason behind it is “lack of information”. There are barely any details or particulars with respect to this in the public domain and there is an absence of public involvement[19]. I will discuss two incidents which show the importance of public participation in development projects.

The Chennai-Salem greenfield corridor highway project was proposed in order to connect Salem and Chennai. Without prior environmental clearance and public hearing, a notification was issued for acquisition of lands from people staying near the project site[20]. It should be noted that both EIA 2006 and Draft EIA 2020 excludes highway and expressway projects from public consultations. In this case, the local people are the stakeholders and are affected by the project. Failure to give an opportunity for public hearing to those people is blatantly unreasonable.

A petition was filed in the Madras High Court with respect to land acquisition and the court quashed the acquisition proceedings. It also stated that prior EC and a public hearing is mandatory for such projects[21]. The highway project will pollute the water bodies and environment, knock down the productive farms and place the reserve forests in that area in danger. But the new draft is quite contrary to the judgment. If the highways or expressways are exempted from Public consultation, then it goes against the interest of some people.

The expansion of Vedanta’s Sterlite copper plant has been stayed by the Madras High Court on the ground that public hearings were not held before the issuance of Environmental Clearance. This order was passed after a violent protest for the closure of the unit where 11 people died and 7 were seriously injured. The local people were concerned with the pollution released by the copper plant. It was also stated by the authorities that even before the issuance of EC, sterlite was allotted 324 acres of land illegally for expansion!

Furthermore, the duration of the public hearing is decreased from 45 days to 40 days[22] and acquiring objections from the people from thirty to twenty days[23]. This provision is quite perilous and insignificant as it is difficult for the people to comprehend the whole EIA process and the task of accessing information is quite arduous. The notification also states that defence and security projects and strategic projects determined by Central Government will not be presented in Public domain. The term “Strategic” is not defined in the draft and it should also proscribe rules so that it does not result in any arbitrary action.

Validity of Environmental Clearance:  The validity period of environmental clearance has been increased for mining, river valley and other projects and this section does not sync with the object of the notification or the parent act. Mining projects are extremely hazardous and can cause destruction if not properly supervised. Increasing the validity of EC for all the projects will not protect the environment. For instance, think about what will happen to Dehing Patkai Elephant Reserve Forest if the mining project is valid for the next 50 years.  All this gives rise to the question “Whether this provision reduces the burden on authorities and business or on the environment?”

Monitoring Mechanism – Post-approval: The draft contains a provision for both cases of violation and non-compliance reported by the project proponent or Government authority. The draft notification did not enable the public to submit such a report of non-compliance and violation. The provision of post-facto clearance divulges the fact that the authorities are remiss in monitoring the industrial units as to whether they have EC or whether they comply with the safeguards. It is not possible to identify every illegal industry, but it can be carried out to a certain extent that it will not have a hazardous impact on the environment.

 It is mandatory for the project proponent to submit compliance report once every year. This provision will reduce the responsibility of the officials. On the other hand, it gives an opportunity to the industrial units to violate the regulations and safeguards. But at present, the report should be submitted twice every year.

Nevertheless, in reality, the violations by the industries are overlooked by the authorities. The Vishakapatnam gas leak which occurred at LG polymers India Private limited was functioning without environment clearance and with the consent of State Pollution Board Control[24]. Investigations revealed that the company was poorly maintained and warning alarms were not working. This incident reveals the lax and negligent monitoring of the concerned authorities.

Vapi, known as the City of Chemicals (Gujarat) was declared as ‘critically polluted area’ in 1989 and 2010. Vapi Action plan was formulated by the Gujarat Pollution Control Board stipulating all the management measures such as periodic air quality monitoring, proper disposal of effluents etc., in order to protect the environment. The plan asserted that environmental pollution in that area has been caused due to non-compliance and violations of environmental safeguards by the industries. A moratorium was imposed on the expansion of industrial units in 2010 which was lifted later. In 2016, the parameters to designate areas as critically polluted were modified and Vapi was no longer considered a critically polluted area.

Reports state that the action plan promulgated was not complied with and the norms are not followed by the industries[25]. A common effluent treatment plant (CETP) established in the area did not treat the effluent water properly and it does not meet the prescribed standards of pollution reduction. The untreated water is released into rivers and estuaries which supports the livelihood of the people in that area. Why were the damages caused to the environment and the people not addressed efficiently by the Government? Vapi mirrors the failure of the Government to shield the environment.

Another incident took place in the Baghjan district of Assam where the oil rig of Oil India Limited (OIL) exploded following a blow out of 14 days. The Assam Pollution Control Board ordered for the closure of oil field and stated that EC was granted to OIL on a condition that it will install blow out prevention system and other precautionary measures and safeguards[26]. The Board also stated that the blowout and subsequent fire reveals the negligent behaviour and carelessness of OIL. Apart from the act that OIL is negligent; the concerned authorities are coequally irresponsible for granting EC as it can be granted only when the project is safe for the surrounding environment. This explosion made 1600 families to evacuate the place during the pandemic; the fumes polluted the flora and fauna of the region. The explosion took place near the Dibru-Saikhowa national park which is home to many migratory birds and endangered species[27].

Language: The Constitution of India has recognized 22 languages as National Language. But the present notification was drafted only in Hindi and English. This makes it difficult for the local people of other vernacular languages to comprehend and perceive the whole process. On June 30, 2020, the Delhi High Court passed an order directing the Centre to publish the Draft EIA 2020 in all 22 languages within 10 days. But this order has not been complied with[28]. It acts as a barrier for local community people to file objections against the draft notification.

Conclusion

The present draft EIA Notification goes against the concept of polluter pays principle, sustainable environment and precautionary principles established by the Court.  India is a social welfare state as embodied in the Directive Principles of State Policy[29]. It is quite essential to strike a balance between economic development and the environment. It was reiterated by the Supreme Court that the protection of the environment would supersede economic development[30].  Any rules or regulation should not be made against the public interest.

While we all sit before our laptops and mobile phones to read about EIA, there are innocent people out there who are the main stakeholders of the development projects and do not have any idea or information about the draft EIA 2020. As a citizen of India, we all have the right to be a part of the decision making process as enshrined in Article 21 of the Constitution of India. Let’s all raise our voices against the draft, as we all owe it to our environment. You can send your suggestions and objections before August 11, 2020, to Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi- 110 003 or you can send an email at eia2020-moefcc@gov.in.

[1] https://www.gktoday.in/gk/environment-impact-assessment/

[2] https://science.thewire.in/environment/eia-2020-environmental-degradation-draft/

[3] http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf

[4] . https://theprint.in/theprint-essential/what-modi-govts-eia-draft-says-why-environment-experts-think-itll-encourage-violations/470248/

[5] http://www.nzdl.org/gsdlmod?e=d-00000-00—off-0aedl–00-0—-0-10-0—0—0direct-10—4——-0-1l–11-en-50—20-about—00-0-1-00-0–4—-0-0-11-10-0utfZz-8-10&cl=CL1.1&d=HASH01b0e5698289dcbd03511684&gt=2

[6] Paragraph 9, Draft EIA Notification, 2020

[7] Paragraph 26, Draft EIA Notification, 2020

[8] Paragraph 19 clause 1, Draft EIA Notification 2020.

[9] Paragraph 14 clause 2, Draft EIA Notification 2020.

[10] Paragraph 20 clause 4, Draft EIA Notification 2020

[11] Paragraph 20 clause 5, Draft EIA Notification 2020

[12] Paragraph 22, Draft EIA Notification, 2020

[13] Paragraph 23, Draft EIA Notification, 2020

[14] https://www.cprindia.org/news/industrial-units-and-other-projects-operating-without-environmental-clearances-be-legalised

[15] Alembic Pharmaceuticals Ltd v. Rohit Prajapati & Ors, Civil Appeal No. 1526 of 2016.

[16] https://www.sentinelassam.com/editorial/illegal-coal-mining-in-dehing-patkai-478936

[17] https://www.sentinelassam.com/editorial/illegal-coal-mining-in-dehing-patkai-478936

[18] https://scroll.in/article/740252/ex-post-facto-prior-environmental-clearances-how-a-nonsensical-phrase-was-used-to-flout-the-law

[19] https://www.downtoearth.org.in/news/construction-boom-will-make-cities-unliveable-centre-for-science-and-environment-38542#:~:text=CSE%20researchers%20pointed%20out%20that,20%20per%20cent%20water%20effluents.

[20] https://www.newsclick.in/protest-against-salem-chennai-green-corridor-continues-nhai-initiates-acquisition-processes

[21] P.V.Krishnamoorthy v. The Government of India, W.P.No.16630 of 2018.

[22] Paragraph 14 clause 6, Draft EIA Notification 2020.

[23] Clause 3, sub-clause 3.1 of Appendix-I, Draft EIA Notification 2020.

[24] https://www.thehindu.com/news/cities/Visakhapatnam/lg-polymers-did-not-have-environmental-clearance-alleges-hrf/article31561365.ece

[25] https://thewire.in/environment/vapi-polluted-gpcb-cepi

[26] https://www.hindustantimes.com/india-news/baghjan-oil-field-was-operating-without-assam-pollution-control-board-s-nod-says-closure-order/story-Yuq8xM8lEPHj0T33EaA6rN.html

[27] http://www.thenortheastwindow.com/2019/03/dibru-saikhowa-national-park-home-rare-endangered-species/

[28] Vikrant Tongad v. Union of  India (MoEFCC), W.P.(C) 3747/2020 & CM APPL.13426/2020.

[29] Directive Principles of State Policy, Constitution of India, 1950.

[30] M.C.Mehta v. Union of India, AIR 2004 S.C. 4016


ABOUT THE AUTHOR

Sara Suresh

IMG-20200803-WA0002

Sara Suresh is a student of Symbiosis Law School, Pune pursuing B.A., LL.B(Hons). She has participated in various moots and has written many research papers. To be a lawyer is her passion and she sternly believes in the idea of success as learning and practising every day. You can reach her at 17010125034@symlaw.ac.in.

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